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Vincent Carroll

Carroll: Like it or not, CSO must abide by Amendment 64

By Vincent CarrollDenver Post editorial page editor

Posted:
05/14/2014 05:15:28 PM MDT

Updated:
05/16/2014 11:25:03 AM MDT

"If 'The High Note Series' had gone on as planned, it would have set a precedent, giving a green light to virtually any club, bar, concert or other gathering to allow open consumption of marijuana provided it sold tickets and confined pot use to an open-air area not visible from outside," writes Vincent Carroll. (Denver Post file)

The city of Denver is being cast as a killjoy and grouch by those who believe it should have let the Colorado Symphony Orchestra proceed with its original plan for a series of bring-your-own-pot concerts. Yet Denver had little choice but to veto the idea.

If "The High Note Series" had gone on as planned, it would have set a precedent, giving a green light to virtually any club, bar, concert or other gathering to allow open consumption of marijuana provided it sold tickets and confined pot use to an open-air area not visible from outside.

Can anyone seriously claim that's what Coloradans voted for in 2012?

Amendment 64 contains not one word hinting at a proliferation of commercial establishments open to the public where pot smoking would be encouraged. Nor did anyone active in the campaign ever suggest that was in the offing.

To the contrary: The amendment fails even to carve out a consumption waiver for retail pot establishments. Meanwhile, it explicitly bars public use, with the actual language as follows: "Nothing in this section shall permit consumption that is conducted openly and publicly or in a manner that endangers others."

Supporters of the CSO's brainstorm make much of the fact that the concerts would be held at the Space Gallery, a private venue, for which you'd need a pricey ticket to enter, and that smoking would occur only on an enclosed outdoor patio. Sam Kamin, a University of Denver law professor, told The Denver Post "that sure looks more private than public" to most people.

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"If the symphony decides to make a test case of it, it would be more interesting," Kamin added. "It would be a much closer case than the Civic Center event would be."

But why would it be a close case? The amendment doesn't distinguish between public and private venues. It simply outlaws "consumption that is conducted openly and publicly." If you light up a joint on the patio of a privately owned tavern at which you'd paid a cover charge, would anyone doubt you were smoking "openly and publicly"?

Why would the judgment be different when the CSO is the host? Because a ticket costs $75 and the music has elite appeal? Please. Those aren't serious distinctions.

If you smoke pot at an event open to the public, you're smoking pot openly and publicly.

This arrangement, finally, has the appearance of legality. Scott Martinez, Denver city attorney, told me, "I don't see any legal basis for us to stop the event."

Supporters of the CSO's original plan don't see the point. Why should it matter, they wonder, if people pay good money to go to an event at which they know pot will be smoked?

What harm does it do in a state where marijuana is already legal?

It matters because Coloradans should get what they voted for. They should not be subject to a bait-and-switch in which they are promised one thing at the ballot box and given another.

What Amendment 64 promised, of course, happens to be an unprecedented loosening of restrictions on marijuana possession, use and sales. But despite all of the rhetoric of regulating pot like alcohol, Amendment 64 made no provision for commercial or nonprofit establishments open to the public where it would be freely consumed.

Maybe Coloradans, after a few years of legal marijuana, will decide they want to loosen the laws further to allow events such as those the CSO envisioned. In that case, the path is clear: Proponents will need to go to voters again, and ask them.

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